Round Midnight

Judis, John B., The American Prospect

As Bill Clinton prepared to leave office and public attention swiveled toward the incoming administration, the outgoing president spent his last months in the Oval Office making recess appointments and issuing a flurry of new regulations and executive orders. Many of these have been in the works for years but were blocked by the Republican Congress. With very few exceptions, these orders and appointments represented the suppressed liberal aspirations of the Clinton administration.

But will President George W. Bush sit by and allow such aspirations to be realized? He can't simply revoke the measures. As the Supreme Court ruled in 1983 when President Ronald Reagan tried to rescind a postelection auto safety regulation issued by Jimmy Carter, a new administration must go through the usual elaborate rule-making procedures (with hearings and review) before revising regulations issued by the previous administration. But a new president can undermine new rules by staying their implementation until the completion of a court challenge or by denying the appropriate agency the personnel to enforce them. So Bush could, if he chooses, effectively delay or undo much of Clinton's work of the last few months. How the new president deals with these "midnight regulations" will tell a lot about how conservative or conciliatory his administration will be.

Clinton used his presidential power to make about a hundred of these new rules and appointments in the twilight of his term. Perhaps the most dramatic was an order protecting 60 million acres of wilderness (an area about twice the size of New York State) from road building, logging, and oil drilling. This initiative drew the wrath of oil and timber companies and their allies in the West, who are already seeking to overturn it in court. But there are lesser known, equally significant, rulings and appointments that business lobbies and their Republican cohorts are already trying to block. Let's consider some of them.

Environment. Over the last six years, Clinton and his Environmental Protection Agency (EPA) have had to wage a rear-guard battle with the Republican Congress just to preserve the existing environmental laws. According to an analysis by the National Resources Defense Council, Clinton has had to veto or threaten to veto 81 different "anti-environmental" bills or riders. In 1997 the EPA introduced new clean-air regulations, but business groups got the Republican-dominated D.C. Court of Appeals to throw them out. The case is now in the Supreme Court [see John B. Judis, "Deregulation Run Riot," TAP, September-October 1999]. But on December 21, Clinton and the EPA announced dramatic new clean-air regulations.

The new regulations would remove the single greatest loophole in clean-air rules by severely limiting the emissions from trucks and buses that use diesel fuel. These vehicles currently produce one-fourth of all air pollutants. The new regulations would require vehicle makers to incorporate the latest anti-pollution technology and would oblige oil refineries to eliminate sulfur from diesel fuel. (A principal cause of soot, sulfur also hampers the ability of catalytic converters to limit emissions, thus making it impossible to control other air pollutants.)

When oil and trucking companies complained last summer that the new restrictions would threaten their survival, the EPA agreed to delay full implementation of the rules until 2010; nevertheless, the lobbies are still determined to kill them. Bush's designated EPA director, Christine Todd Whitman, supported the diesel regulations as governor of smog-ridden New Jersey. But if she is confirmed, she will be under intense pressure from oil industry executives, who will certainly try to enlist the support of their former colleagues Dick Cheney, the new vice president, and Don Evans, Bush's chosen commerce secretary.

Federal Procurement. In July 1999, the Clinton administration proposed a new rule that would clarify the vague and little-used requirement that the government consider whether a potential contractor has a "satisfactory record of integrity and business ethics. …

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